I support today’s decision to grant Verizon Section 271 authority in Massachusetts. While I continue to have doubts about the Commission’s overall approach to these proceedings, I believe today’s approval is a first step towards a more statutorily-constrained approach to Section 271 applications.

There are a number of hopeful signs in today’s Order. First, the Commission has resisted the temptation to condition its approval on some future event or approve entry based on some new information submitted after the filing date.1 The only relevant consideration should be a carrier’s section 271 performance at the time the application is filed. Section 271 is intended to be a snapshot of what actually prevailed in the market 90 days ago not a crystal-ball-gazing speculation about a parade of horribles that may – or may not – happen in the future. When speculation prevails, 11th hour “dealmaking” is not far behind.

Second, today’s decision is less intrusive into the province of state commissions. I have long advocated a more deferential approach to state commission decisions, on compliance with the checklist generally and particularly on pricing issues. Today’s order moves productively in that direction. Similarly the Commission has refrained from the detailed second-guessing of state commission determinations that once typified these orders.

Finally, today’s order more clearly limits our consideration to those items actually in the statutory checklist. Prior decisions seemed at least implicitly to expand that checklist – by “encouraging” and “expecting” companies and commissions to take additional steps that reflected the policy priorities of the erstwhile majority. That practice has now been largely eliminated. Although these are all positive trends, I hope that future commissions will continue down this road.

Nonetheless some aspects of today’s Order are not consistent with my overall view of the FCC’s role. As I have stated in prior Section 271 decisions, I believe that Section 271 primarily requires the Commission to determine whether a Bell operating company has fulfilled its obligations under Sections 251 and 252, and these are specified in the interconnection agreements into which it has entered.2 In this regard, an essential element in my review is whether any complaints have been filed at the FCC or with the relevant state commission alleging non-compliance with section 251 generally and section 252 agreements in particular. In the absence of such complaints, I take a highly skeptical view of allegations that are aired for the first time in the Section 271 application process. Section 271 does not create an opportunity to circumvent the statutory dispute resolution process created by Sections 251 and 252. Although today’s order does emphasize the utility of complaint processes and the role of the states, it nonetheless indulges new and novel concerns unreviewed elsewhere in far more detail than I would have.

I also wish to emphasize that the FCC’s job does not end with approval of Verizon’s application. Section 271 (d)(6) sets forth a clear role for the Commission to ensure that Bell operating companies continue to meet the statutory checklist. I share Chairman Powell’s commitment to swift and sure enforcement action when licensees violate our rules. Thus we will closely monitor the situation in Massachusetts in order to be certain that Verizon remains in full compliance with Section 271.

1.Unfortunately the Kansas and Oklahoma Order suffered from both of these deficiencies.